On Wednesday, Judge Daniels of the Southern District of New York heard arguments in CREW v. Trump, the first Emoluments case, on the Department of Justice’s motion to dismiss. The case is its own self-contained course in constitutional law and civil procedure, covering a dizzyingly broad range of subjects and methods of interpretation. The primary debates so far have been on whether the plaintiffs have standing and on the meaning of the word “emolument.”

Meanwhile, a secondary question has been in the background: Is the Foreign Emoluments Clause solely a question for Congress, not the courts? If so, it would be a “non-justiciable” political question. This clause has never been addressed in the courts, so it is a new question. I think most observers were surprised that Judge Daniels spent so much time on this possibility and seemed so sympathetic to the argument that his court could dismiss the case by punting it to Congress.

“Congress is not a potted plant.” So says Judge George Daniels of the federal district court for the Southern District of New York in a decision dismissing a lawsuit against Donald Trump for violating the Foreign and Domestic Emoluments Clauses. We agree with that—for one thing, potted plants are much easier to move. But Congress’s status as something other than a potted plant provides little support for the district court’s conclusion that the plaintiffs in CREW v. Trump lack standing to sue the President.

When President Trump took the oath of office, he swore to “preserve, protect and defend” the Constitution of the United States. Yet since he took that oath, he has been flagrantly violating a critical provision of the Constitution that was designed to ensure that the nation’s leaders would always put the national interest above their personal self-interest.

Today, Sen. Richard Blumenthal, Rep. John Conyers, and 194 other members of Congress have gone to federal court seeking to put an end to the president’s willful violations of the Constitution. We, at the Constitutional Accountability Center, are proud to represent them in this effort.

When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation. They understood what a threat corruption posed and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties.

In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.” Although there has been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.”

by Leah Litman, Assistant Professor of Law, University of California, Irvine School of Law

On Monday, the State of Maryland and the District of Columbia filed a lawsuit against Donald Trump. The suit alleges that the president is in violation of the Emoluments Clauses. (The “Emoluments Clauses” include the Foreign Emoluments Clause, which prevents office holders from accepting emoluments from foreign states or foreign officials without Congress’s consent, and the Domestic Emoluments Clause, which prohibits the president from receiving any emolument other than his salary for being president.)

Maryland and D.C.’s suit is an intriguing development for many reasons. I will just focus on one here: Maryland and D.C.’s case introduces a new theory of standing into the emoluments litigation and given DOJ’s less than rousing defense of the legality of the president’s financial arrangements in another emoluments lawsuit, Maryland and D.C.’s suit should concern the president and his lawyers.

The New Theory of Standing. The emoluments suits filed to date have been brought by private parties—private organizations and private individuals arguing that they have been harmed, in their private capacities, by the president’s violations of the Emoluments Clauses. The private businesses (and individuals) argue that they are losing out on business to the president’s hotels and restaurants because of foreign and state officials’ desire to curry favor with the president by giving money to his hotels and restaurants, in which he continues to hold a financial stake. I have written some about this theory of standing before on this site.

Yesterday we learned that the Trump Organization has deemed it “impractical” to identify all payments that its hotels receive from foreign governments. Instead of asking guests a few simple questions, the Trump Organization will rely on estimates and assumptions about payments from foreign powers at its properties. It will use those figures—in unclear ways—to calculate total profits from foreign governments. And from time to time, it will write a check for this amount to the U.S. Treasury.

If the Trump Organization thinks that will solve Trump’s breach of the Foreign Emoluments Clause, it is mistaken. This plan responds to only a fraction of Trump’s emoluments and presents (those given by foreign powers to Trump through hotel rentals). And it is inadequate as a safeguard against emolument violations even in that limited context. The Constitution requires that Trump actually stop receiving foreign presents and emoluments, not that he forge an appearance of avoiding some of them.

The scope and danger of Trump’s constitutional violations are, by now, well known. Yet even with advance warning and the best lawyers his money can buy, Trump has never fielded a good defense to claims that he is violating the Foreign Emoluments Clause. In fairness to his lawyers, that is because there is not a good defense to be had: he is violating the Clause in nearly every conceivable way (short of accepting an office in Vladimir Putin’s government).